IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present:

The Hon’ble Justice Hiranmay Bhattacharyya CO 2621 of 2025 Chandra Mohan Khandewal Versus Smt. Purabi Mahata & Ors.

For the petitioner : Mr. Kartick Kr. Bhattacharya Ms. Papiya Naskar For the opposite party : Mr. Debasish Roy, Sr. Advocate Mr. Souvik Sonkar Heard on : 25.07.2025 Judgement on : July 25, 2025 Hiranmay Bhattacharyya, J.:

1. This application under Article 227 of the Constitution of India is at the instance of the plaintiff and is directed against order dated June 20, 2025 passed by the learned Civil Judge (Jr. Division), Dubrajpur, Birbhum in Title Suit No. 62 of 2007. By the order impugned the application under Section 151 of the Civil Procedure Code praying for stay of all further proceedings of Title Execution No. 17 of 1976, pending before the learned Civil Judge (Jr. Division), Dubrajpur, Birbhum, till the disposal of the partition suit in final form stood rejected.

2. Mr. Bhattacharya, learned advocate appearing for the petitioner submits that the petitioner has filed a suit for declaration of his title, partition and for permanent injunction in respect of 10 decimals of plot no. 4074 within Mouza – Dubrajpur in the district of Birbhum. He submits that the opposite parties herein are trying to evict the petitioner from the suit property which is involved in the partition suit by way of execution of an eviction decree obtained against the petitioner by the opposite parties herein.

3. Mr. Bhattacharya, learned advocate appearing for the petitioner submits that in the instant suit an order of status quo with regard to possession is still in subsistence. He, therefore, submits that the petitioner cannot be dispossessed by way of execution of the eviction decree.

4. Mr. Roy, learned Senior Advocate appearing for the opposite parties submits that after a contested hearing, an eviction decree has been passed against the petitioner herein and such decree has already attained finality. He further submits that the said decree was put into execution sometimes in the year 1976. He further submits that the petitioner filed an application under Section 47 of the Civil Procedure Code which also ended in dismissal. He, therefore, submits that the title execution case for executing the eviction decree cannot be stalled merely on the ground of pendency of a suit for partition. He further refers to the decision in the case of India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandei Agarwalla & Ors. reported in (2004) 3 SCC 178 and in the case of Pramod Kumar Jaiswal & Ors. Vs. Bibi Husn Bano & Ors. reported in (2005) 5 SCC 492 in support of his contention that assignment of interest in respect of a part of the property does not amount to merger of interest.

5. Heard the learned advocates for the parties and perused the materials placed.

6. The predecessor-in-interest of the defendants of this suit previously instituted an eviction suit being T.S.No. 111 of 1974 against the predecessor-in-interest of the plaintiffs herein which was decreed. The said decree was affirmed upto this Hon’ble Court in Second Appeal. The eviction decree was put into execution giving rise to Title Execution Case No. 17 of 1976.

7. The petitioner claims that though his predecessor was a tenant in T.S.No. 111 of 1974 under the predecessors of the opposite parties but now the petitioner has become a co-sharer of the suit property by virtue of the registered deed of 2007 and filed a suit for partition being T.S.No. 62 of 2007.

8. The petitioner filed an application in T.S.No. 62 of 2007 praying for stay of Title Execution Case no. 17 of 1976 which stood rejected by the impugned order.

9. In order to decide the issue as to whether the Execution case initiated for execution of an eviction decree can be stalled on the ground of pendency of the partition suit, it would be profitable to consider the proposition of law laid down by the Hon’ble Supreme Court.

10. In India Umbrella Manufactur